Turning the law against the people
Why judges should never meddle in political affairs.
Constitutions have three powers: parliament, executive and judiciary. In a vibrant democracy, each power will have a specific but harmonious relationship with the will of the people: parliament will engage with it; the executive will carry it out; and the judiciary will not alienate it.
Yet, in recent years, Britain’s political class has grown apart from the will of the people on many issues, particularly the European Union. The EU issue fractured parliament’s relationship with the people prior to last year’s referendum, spread to the executive after the referendum and has now engulfed the judiciary, which, for its Brexit rulings, has been castigated as enemies of the people.
In a democracy parliament should be able to engage with and represent its voters, particularly on fundamental issues such as the EU. But, in recent years, parliament has grown distant from the people. This became obvious with the EU referendum: despite 52 per cent of the people voting Leave, only 25 per cent of MPs are thought to have voted the same way (excluding undecideds). The four main political parties (Conservative, Labour, SNP and Lib Dem), which account for 96 per cent of all MPs, all backed Remain. Only UKIP, with one MP, and the Democratic Unionist Party, with eight MPs, backed Leave.
The original decision to hold the EU referendum was parliament’s response to its estrangement from the people on Europe. By unanimously passing the Referendum Act 2015, parliament handed the question of EU membership over to the people. In effect, the breakdown of representative democracy had caused parliament to legislate for an episode of direct democracy. Parliament and the executive never doubted the political significance of the referendum as a way of empowering the people to resolve the issue that parliament had not and could not resolve. So, in 2013, the prime minister, David Cameron, said: ‘I say to the British people: this will be your decision… So we will have time for a proper, reasoned debate. At the end of that debate you, the British people, will decide.’
Two years later, the Tory Party’s General Election manifesto stated that a Conservative government would legislate ‘for an in-out referendum’, which ‘we will honour… whatever the outcome’. When the Referendum Bill was presented to the House of Commons, the foreign secretary, Philip Hammond, said the bill had ‘one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in-out referendum’. Supporting the bill for the opposition, Hilary Benn, said, ‘it will be for the British people to decide’ (1). The entire legislative process, which culminated in the Referendum Act 2015, was informed by the view that the British people would bypass parliament and decide the issue of EU membership directly.
Furthermore, the government delivered a leaflet to every household during the campaign that told them the referendum was ‘your chance to decide if we should remain in or leave the European Union’, and that ‘[t]his is your decision. The Government will implement what you decide.’ Anyone who now claims that the referendum did not transfer power from parliament to the people is rewriting history.
The referendum could have started a healing process for the political class had it been prepared to take the will of the people seriously. A political class with a strong commitment to democracy would, after the referendum, have put aside its divisions on the EU and harnessed the power of the people to lead Britain out of it. But the political class did not do this. Instead, the fractured relationship with the people that started with parliament merely spread, after the referendum, first to the executive and then to the judiciary.
The day after the referendum, the executive should have performed its role and begun the process of executing the will of the people. This did not happen. Instead the prime minister resigned, cabinet members made themselves scarce, Leave-backing ministers looked shocked and, as it now transpires, the civil service had made no plans for a Leave majority. Instead of executing for Leave, the executive went absent without leave.
Before the referendum David Cameron had said that a Leave majority would result in Article 50 being triggered straight away. Seven months later, Article 50 has still not been triggered. Political vacuums tend to be filled. This one was filled by the judiciary doing what it should never do in a democracy: not only did it allow itself to be politicised, but it also allowed itself to be seen as taking sides against the will of the people. No matter what the claimants and the court said about only being interested in process and the rule of law, any ruling to hand control of the Article 50 process to parliament (with substantial Remain majorities in both houses) was bound to be seen as an attempt to frustrate the referendum result. The day after the High Court judgement in November, the three judges were frontpage news under headlines describing them as ‘enemies of the people’.
Last week, the Supreme Court had an opportunity to begin a healing process with the people. It could have overturned the High Court’s decision on the issue of whether parliament or the executive had to trigger Article 50. Of course, judges have to apply the law, but the inescapable fact is that, as the three dissenting judges recognised, there were two ways in law by which the Supreme Court should have overturned the High Court decision.
First, the Supreme Court should have left the law as it has been for centuries; namely, that foreign relations, such as with the EU, are matters for the executive, rather than parliament. This ‘classic rule’, as the court correctly styled it, has stood the test of time for obvious reasons. It enables a nation to act on the international plane with unanimity, strength and speed. As a dissenting Supreme Court judge put it, the values of executive action ‘in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th’. The application of the classic rule would have been a principled legal way of overturning the High Court’s decision, but the Supreme Court majority rejected it.
Second, the court should have recognised that the exercise of power by the executive is not ordinarily a matter of law. On the contrary, it is a quintessential matter of democratic politics. The executive (via government ministers) is accountable to parliament, which has many powers in its armoury. Moreover, the government is ultimately answerable to the people and they, too, have many ways of holding the government to account, most importantly with political debate and argument, backed up with the ultimate sanction of the ballot box. The executive’s accountability to parliament and the people are hallmarks of a democracy. They are relationships that the judiciary, absent a compelling reason, should not mediate. As Lord Carnwath observed in his minority judgment, there could be no compelling reason for judicial intervention on the Article 50 issue since the executive was pursuing ‘a chain of events which flows directly from the result of the referendum which [parliament] authorised in the 2015 [Referendum] Act’.
The Supreme Court rejected the above arguments by eight votes to three and opted instead, despite the referendum, to require an Act of Parliament before the executive can trigger Article 50. The court’s ruling was informed by a legal perspective that now routinely skews judgements in favour of individual rights and against collective interests. Legislation is required, the court held, because leaving the EU involves the loss of rights that have been created over the years by EU institutions. In other words, Gina Miller’s right, for example, to move and work freely throughout the EU gave the Supreme Court the power to rule on the political boundary between parliament and the executive.
Although the press personalised the Brexit judgements by dubbing judges as ‘enemies of the people’, it is actually the law, rather than individual judges, that is the problem. With the passing of the Human Rights Act in 1998, and similar rights-based legislation, judges have been schooled to champion persons over people by focusing on individual rights at the expense of collective interests. Accordingly, the law has been skewed over nearly two decades to treat individuals with a grievance preferentially. Moreover, those who could never win a political argument with the people are now favoured agents for developing the law: prisoners wanting to vote; foreign individuals wanting to sue British armed forces; illegal immigrants wanting to stay in the UK; and Remainers who felt ‘physically sick’ in the aftermath of losing the referendum. Losing in the court of public opinion is now a useful guide to being able to win in a court of law.
Supreme Court judges are at the cutting edge of shaping the law and they have been fed a diet of me, me, me for years. It is understandable that they perceive the law in terms of individual rights at the expense of collective interests. Indeed, this may explain why the seven most senior judges of the court voted with the majority whereas, of the four most junior judges, three of them gave dissenting judgements: they have not yet lost the ability to frame the law without obsessing over rights.
The Supreme Court judgement has harmed the constitution. The ramifications of using rights to fetter the executive’s ability to act on the international plane with unanimity, strength and speed will now be argued over in parliament for years to come. And the arguments that win the day may be those supported by the best lawyers. When law intrudes, the merits of an issue tend to be lost behind arguments over what the law requires.
Moreover, by turning the parliament-executive boundary into a legal issue, aggrieved individuals have been given the power to challenge the ‘legality’ of decisions that are essentially political. No sooner was the ink dry on the government’s European Union (Notification of Withdrawal) Bill than one lawyer (the one who launched the crowdfunding exercise that culminated in last week’s Supreme Court judgement) was questioning the legal adequacy of the bill. If the door for lawyers to meddle in politics is left ajar, they will force it open. And, as this lawyer candidly admits, lawyers are rarely interested in right or wrong (the hallmark of politics) for they are interested in process (the hallmark of lawyers with political views they’d rather keep from the public).
The Supreme Court’s judgement will also be bad for the judiciary. In the most perceptive sentence of the whole judgment, Lord Reed warned: ‘It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’ These words are sure to ring true over the years to come as the judiciary is invited to make further rulings on politically contentious issues, and to do so at the behest of those who have lost, or fear losing, a political argument with the people.
The EU issue has exposed rifts between the UK’s three constitutional powers and the will of the people: parliament is unable to engage with it; the executive is unable to carry it out; and the judiciary has alienated it. No doubt these three powers will continue to muddle along. But ultimately, in a democracy, the will of the people must prevail. The only question is how much more harm will be done to parliament, the executive and the judiciary before each power starts harnessing the will of the people rather than dissing it.
Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb.
(1) See Submissions On Behalf Of Lawyers for Britain, 29/11/16, para 31
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